Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re EpiPen (Epinephrine Injection, USP) Marketing, Sales Practices and Antitrust Litigation

United States District Court, D. Kansas

December 4, 2018

IN RE EpiPen (Epinephrine Injection, USP) Marketing, Sales Practices and Antitrust Litigation (This Document Applies to Consumer Class Cases)

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge

         This matter comes before the court on non-parties Kaiser Foundation Health Plan, Inc. and Kaiser Foundation Hospitals' (collectively, "Kaiser") Objections to Magistrate Order Granting the consumer class plaintiffs' Motion to Compel Production of Documents. Doc. 1048. The consumer class plaintiffs have filed a Response opposing Kaiser's Objections. Doc. 1079. Kaiser never has filed a Reply, and the time for doing so has expired. For reasons explained below, the court denies Kaiser's Objections.

         I. Factual and Procedural Background

         On December 11, 2017, the consumer class plaintiffs[1] served subpoenas on Kaiser under Federal Rule of Civil Procedure 45. Docs. 165 & 166. Kaiser timely filed objections to the subpoenas. Later, Kaiser produced some documents in response to the subpoenas. But the class plaintiffs contended that Kaiser withheld other relevant and responsive documents. The class plaintiffs thus moved the court to compel Kaiser to produce those documents. Docs. 432 & 433.

         On September 10, 2018, Magistrate Judge Teresa J. James granted the class plaintiffs' Motion to Compel. Doc. 980. Specifically, Judge James concluded that our court has jurisdiction to decide the Motion to Compel. Id. at 6-7. Also, Judge James found that the class plaintiffs' document requests sought relevant materials and were not unduly burdensome. Id. at 7-11. Judge James thus overruled Kaiser's objections and ordered Kaiser to comply with the subpoenas. Id. at 11.

         Kaiser now has filed Objections to Judge James's Order. Doc. 1048. Kaiser's Objections assert that Judge James erred when she granted the class plaintiffs' Motion to Compel requiring Kaiser to comply with the class plaintiffs' subpoenas. Thus, Kaiser argues, the court should set aside Judge James's Order under Federal Rule of Civil Procedure 72(a). Kaiser's Objections also recite that "Kaiser and the Class Plaintiffs are in discussions about the scope of [Judge James's] Order and plaintiffs' subpoenas, and Kaiser is optimistic that it can resolve any scope concerns without further court involvement," but that "Kaiser is lodging these objections as a protective matter, so as to preserve them in the event [the] negotiations break down." Id. at 4. About two months has passed since Kaiser filed its Objections, and no one has reported that the parties have resolved the "scope concerns." Thus, Kaiser's Objections remain ripe for the court to decide. Accordingly, the court addresses and decides Kaiser's Objections, below.

         II. Legal Standard

         Federal Rule of Civil Procedure 72(a) permits a party to present specific written objections to a magistrate judge's order. When reviewing a magistrate judge's order deciding nondispositive pretrial matters, the district court applies a "clearly erroneous or contrary to law" standard of review. See First Union Mortg. Corp. v. Smith, 229 F.3d 992, 995 (10th Cir. 2000) (quoting Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1461-62 (10th Cir. 1988)); 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a). This clearly erroneous standard doesn't permit a de novo review of the factual findings; instead, the district court must affirm a magistrate judge's order unless a full review of the evidence leaves it "with the definite and firm conviction that a mistake has been committed." Ocelot Oil Corp., 847 F.2d at 1464. In contrast, "the contrary to law" standard permits the district court to conduct an independent review of the magistrate judge's purely legal determinations. Sprint Commc 'ns Co. v. Vonage Holdings Corp., 500 F.Supp.2d 1290, 1346 (D. Kan. 2007) (citations and internal quotation marks omitted). A magistrate judge's order is contrary to law when it "fails to apply or misapplies relevant statutes, case law or rules of procedure." Walker v. Bd. of Cty. Comm 'rs., No. 09-1316-MLB, 2011 WL 2790203, at *2 (D. Kan. July 14, 2011) (citing Botta v. Barnhart, 475 F.Supp.2d 174, 185 (E.D.N.Y. 2007)).

         III. Analysis

         Kaiser asserts three arguments to support its Objections to Judge James's Order. The court addresses each argument, in turn, below.

         First, Kaiser argues that our court lacks jurisdiction to decide the class plaintiffs' Motion to Compel Kaiser to comply with the class plaintiffs' subpoenas. Kaiser asserts that Federal Rule of Civil Procedure 45 requires the class plaintiffs to move for relief in the Northern District of California-where Kaiser's headquarters is located and where Kaiser must comply with the subpoenas. In 2013, Rule 45 was amended to require the filing of "subpoena-related motions and applications [in] the court where compliance is required . . . ." Fed.R.Civ.P. 45 advisory committee's note to 2013 amendment. The amendment's purpose was "[t]o protect local nonparties" by providing for "local resolution of disputes about subpoenas" and to "avoid[ ] burdens on local nonparties subject to subpoenas." Id.

         Rule 45 provides that the place of compliance for producing documents is within 100 miles of where the "person resides, is employed, or regularly transacts business in person." Fed.R.Civ.P. 45(c)(2)(A). Here, the class plaintiffs' subpoena directs Kaiser to produce documents in Oakland, California. Doc. 432-7. Thus, Kaiser argues, the place of compliance is the Northern District of California. Consequently, Kaiser contends, our court lacks jurisdiction to decide the class plaintiffs' Motion to Compel because the District of Kansas is not the place of compliance for the Kaiser subpoenas. The court disagrees.

         As Judge James correctly ruled, our court-as the transferee court in this MDL proceeding-has jurisdiction to decide this issue, not under Rule 45, but instead under 28 U.S.C. § 1407. Section 1407(a) authorizes the MDL Panel to transfer "civil actions involving one or more common questions of fact" to any district for coordinated pretrial proceedings. 28 U.S.C. § 1407(a). When Congress enacted § 1407, its purpose was "intended to provide centralized management of pretrial proceedings and to ensure their just and efficient conduct." U.S. ex rel. Pogue v. Diabetes Treatment Ctrs. of Am., Inc., 238 F.Supp.2d 270, 273 (D.D.C. 2002) (citations and internal quotation marks omitted). And, specifically, § 1407(b) permits the MDL court to "exercise the powers of a district judge in any district for the purpose of conducting pretrial depositions in such coordinated or consolidated pretrial proceedings." 28 U.S.C. § 1407(b). Other courts thus have concluded-both before and after the 2013 amendment to Rule 45-that § 1407(b) empowers an MDL judge to enforce a subpoena duces tecum acting as a judge of another district. See, e.g., U.S. ex rel. Pogue v. Diabetes Treatment Ctrs. of Am., Inc., 444 F.3d 462, 468-69 (6th Cir. 2006); In re Disposable Contact Lens Antitrust Litig, 306 F.Supp.3d 372, 377-78 (D.D.C. 2017); In re Am. Med. Sys., Inc. Pelvic Repair Sys. Prod. Liab. Litig, No. 2:14-cv-29705, 2016 WL 756485, at *2 (S.D. W.Va. Feb. 25, 2016); In re Boston Sci. Corp. Pelvic Repair Sys. Prod. Liab. Litig., MDL No. 2326, 2014 WL 1329944, at *1 n.2 (S.D. W.Va. Mar. 31, 2014).

         Also, Kaiser argues that our court-in earlier MDL proceedings-has refused to apply an exception to Rule 45 's place of compliance requirement. But, in the case cited, the parties didn't argue, and thus Magistrate Judge O'Hara never considered whether the court could exercise jurisdiction under § 1407. See In re Syngenta AgMir 162 Corn Litig., MDL No. 2591, 2017 WL 386835, at *1 (D. Kan. Jan. 27, 2017) (holding that the court could not quash a subpoena under Rule 45 because the subpoena required compliance in the Northern District of California, but never discussing whether § 1407 conferred jurisdiction on the court to decide the issue in an MDL proceeding). Also, Kaiser cites another case where the court found that § 1407 may confer an MDL court with authority to enforce a deposition subpoena, but not a subpoena duces tecum. In re Packaged Seafood ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.